Over the past couple weeks, there has been a flurry of writing on this blog (see here, here, here and here) and elsewhere about events in Crimea/Ukraine. Oxford University Press have produced another of their ever so useful Debate Maps on Ukraine.

“The . . . index maps scholarly commentary on the legal arguments regarding the public international law (and some domestic constitutional law) aspects of the use of force in Ukraine, published in English language legal blogs and newspapers, and free content from OUP’s online services.

Use this map to review scholarly arguments and to keep track of which issues have been covered and who has said what.”

I could not recommend this Debate Map, and the other OUP maps (here, here, here), more highly. There is so much writing on topical international law issues that it can be difficult to stay abreast of what has been written, particularly over a short space of time. The Debate Map is an excellent way of doing so.

22 Responses

Dear Dapo,
Thanks for flagging this. Meanwhile Ukraine has filed an inter-State application (no. 20958/14) against Russia with the ECtHR, which has adopted interim measures asking both States “to refrain from taking any measures, in particular military actions, which might entail breaches of the Convention rights of the civilian population”. Let us hope that all parties will heed the Court’s appeal.

I very much hope that no military actions will be taken in the case of Crimea. If international community denies the right of a nation for self-determination under certain specifique circumstances then we may accuse of Crimean people for their hope for better life. If you knew the history of Crimea, the people who live there and their current economic situation then perhaps you won’t consider the “crisis” only in black and white. Come to Crimea, speak to local people and you will see why the Crimeans want to decide their destiny themselves and not by any other authority. Let’s wait for the results of referendum, it will be a good ground for further discussions.

First, I would like to see a case study of Germany and Austria 1938 and the presence of troops before the vote taking place.

Secondly, I would like the world community showing some trust in the UN framework when they feel people are under threat. Suspicion against a biased one-sided intervention could thus be avoided with international supervision and help to restore the order.

I guess German-Austria 1938 case is of different nature. It looks re-unification of DDR and BRD is more similar by substance to Crimea puzzle. The main feature of Crimea re-union with Russia is the will of ethnic Russians of Crimea to return to Motherland. This should be understood clearly. They didn’t like “ukrainisation” of the Crimea during last 20 years and wanted to restore traditional values of russian community. Crimea historically always was a part of Russia in tzarist era and soviet time and only following exotic voluntary desision of Nikita Khrushev was transfered to Ukraine jurisdiction. By the way, the parliament of Russia in 1993 recognised Mr.Khruschev desicion invalid, but international community didn’t pay much attention to that fact. Today’s international tension is focused on so called irrelevant actions of Russia, but nobody wants seriously look into the matter.

DDR, BRD was split because Germany lost WWII and a definite marker of the blocks that would soon enter the Cold War. I don’t see how that applies to Crimea. I was more concerned with troops being present before the vote and from what it look like they are using modern Russian equipment, not just some armed locals rising in dissent.
If the people wanted to do a vote there would have been no need for armed forces (especially with the claimed 80% turnout and 96% yes vote) and if there were concern for the mistreatment of people in Ukraine, as Russia have been saying, a properly working UN would have taken care of that in no-time (in an impartial and orderly manner).
With the recent history of Syria in mind how can Russia, with any clear conscience, argue for intervention on humanitarian basis? Not very likely, so that leaves only the presence of the troops before the vote and the equipment pointing to Russia.

There are so called “difficult cases” in international law when direct implications of certain rules don’t give you definite answer what is right and what is bad. In near past there was unclear international treatment of conflicts in Kosovo, Folklands or Abhazia. Each case had different legal background all affected territorial sovereignity of certain countries in conflict. I can also put a question – where UN was and why SC couldn’t interefere there to restore a peace and order? Crimea is the case of serious difficulties with regard to international and domestic law. Only one point – Ukrainian Constitution doesn’t allow local referendums aimed at separation of a certain region from the country (like in Catalunya). Ukraine is a state with highly centralized government and when there is a conflict between Kien goverment and the region the Constitution is silent. The only way for Kiev in such a situation is to dismiss the local Government but Crimea is historically independent enough just to obey Kiev’ instructions. So Crimea refused to listen to Kiev and that caused the whole crisis. The qustion is – where UN or EU were when they saw a complete disagreement between Kiev and Crimea? Russia proposed re-unification but UN and EU were silent. They started to complain in my view too late…

“The question is – where UN or EU were when they saw a complete disagreement between Kiev and Crimea?”

I think you would have to ask the UN through their channels about that. In my understanding a government have to care about their citizens, listen to them and treat them with respect. If the government fail to do this they are somewhat dictatorial or maybe even fascistic, for the lack of a better word describing a negligent passive stance towards the concerns of the citizens.

In my common sense view based on respect for humanity any such government is illegitimate. The people should not accept such a government and the international community should not accept such a government. Government should be by the people for the people, all of them.

The solution is not to rearrange the map but to make sure that the government is fulfilling its mission — that is not to exert power over others but to impartially provide the opportunity for all people to pursue their life with respect for nature and without stepping on others equal right to freedom.

I don’t know what the UN is doing locked up in security council veto but their work should be to make sure that in the international community no government is failing their mission.

The rules are quite simple with freedom based on the Universal Declaration of Human Rights. It is in the interest of all people to stand up for these rules. It is never too late to get things right.

A land grab is not a proper way to go about it, it will cause havoc in the world. Someone do it and suddenly everyone think they can annex their neighbors for whatever reason. The blue helmets are defenders of freedom and if order needs to be restored then send them in. They will protect the rights of all people except those that trample on others. Send in international observers too to observe that no one exceeds their mandate.

The objective of government is clear, just follow up and see that they do their work. The principles are set.

“The solution is not to rearrange the map but to make sure that the government is fulfilling its mission — that is not to exert power over others but to impartially provide the opportunity for all people to pursue their life with respect for nature and without stepping on others equal right to freedom.”

Hovewer life is very complicated thing and universal logic not always dominates the development of life in that or another country. Tell me what to do legally if certain nation wants to separate from the state and to set up their independent country? I don’t know any modern Constitution where “separation” of any territory is allowed. Usually separation – which is in fact rather rare phenomenon in contemporary world – is caused by “revolutuionary” situation or serious humanitarian crisis. Unfortunately any separation can be easilly described as a breach of law. But what about inspirations and hopes of people who want to start their independent life? Should we fully deny the basic principle of the UN stating that the people have the right for democratic self-determination?

I’m not in favour of the re-mapping of the world but in certain sharp cases international law should recognise the right of people for independent life. In Crimea people clearly voted for separation from Ukraine, this is true fact regardless any accusations of using troops. Russia just wanted to provide peaceful conditions of life in Crimea because you should’t forget about ukrainian military bases there and threats from radical nationalistic and neo-fascisctic ukrainian forces. As you know there were no military victims in Crimea, and so far peace and order is there.

Internatiobal community (mainly USA and some EU countries) only took into account the matter of so called “illegal referendum” and they don’t want to look deeper into the subject. In fact the picture is not black and white, it is more colourful having in mind historic, political, economic and humanitarian dimensions.

Last week Constitutional court of Spain stated that a proposal for referendum in Catalunya is illegal because it contradicts Spain constitution. But many people of Catalunya raise their voices for self-determination of their territory. What would you say about this “conflict”? How should we treat this case? In my view Catalunians should decide their destiny themselves, not Spain government.

How can Europe arrange such possible “separation” cases? Very difficult question, there is no simple and clear solution so far. In my view we should think about practical “Europe without borders” arrangements based on true democratic valus with equal opportunities for all people and nations. This is not easy task to fulfil but we should start moving in this direction.

Life may be complicated as you say, but human beings are quite intelligent and the essence of the most fundamental document, a proposal for equal rights and a way to peace and justice, that is the Universal Declaration of Human Rights(UDHR), is not so hard to understand. If the development in areas of the earth don’t keep this foundation of peace and rights in mind they are departing from the concept of justice and will be subject to judgment by an impartial court of law.

You are talking about certain areas and people wanting to separate from the state and asking what to do legally. I will give you another question here and ask what will happen when for example every block and neighborhood want to be independent from each other and what are they separating from really? A proper state have to allow their citizens freedom of culture, freedom of religion and freedom of life, under the responsibility that they don’t step on each other’s equal rights and treat each other with respect (in a spirit of brotherhood (Article 1 in the UDHR)).

In the case of Crimea, if Russia had the intention of providing a peaceful environment they should have went through the UN to gain legitimacy. Single parties can’t go around in the international arena to do whatever they like. The UN framework is there to help us defend the rights of each and every one. For me, countries and borders are a remnant from the past. For me, we can have one country or no country on planet Earth but we need an organization that will provide peace and security by providing the equal rights of all people without being some kind of dictatorial system forcing people to live in any certain way except to follow the principles set forth in the UDHR allowing freedom under the responsibility of respect for others. Government need also be transparent to ensure there is no corruption. So to sum that up there is nothing in a proper state under the UDHR that prohibits self-determination as long as we have respect for other people.

We can have one country, no country or keep the borders as they been. What we can’t have, in my opinion, is people fighting or separating themselves into fractions or blocks in a struggle for territory as the remnants of the Cold War have been a horrible example of. We need to help each other keep order and protect the rights of each other. Syria is a horrendous example of the failure to agree on these basic principles and the victims are ordinary people, it could be you and me. It’s terrible.

The principles are simple and with a transparent government it will be easy to spot who’s got ambitions outside or in conflict with this most basic of agreements. For far too long the world has been stuck on special interests and we can only get out of this mess by working together and helping each and every one of us in our struggle for equal rights, opportunity and basic necessities.

Your ideas for better world based on UDHR are very optimistic, it reminds me recent past when USSR tried to build up so called “socialism”, a well developed society where everything is for the benefit of its citizens. Free of charge education, free of charge medecine, 100% employment, 100% pensions etc. Ideal model for the state – but it failed to reach its goals. Why? There are many reasons for it including political, economic, human rights etc. But the key reason was that the USSR united various nations with different levels of education and professional skills. Plus nationalistic peculiarities. So leaders of the USSR tried to overjump sufficient period of time in the development of different nations which formed up the union state.
I guess you try to organise modern world based on UNHR values on the same pattern. The idea is outstanding but it is very far from our reality. People face many difficulties in various areas of the world and not always they are happy with their lives. Imagine that personal wealth of Crimea citizens significantly falled down during Ukrainian era. Looking at the coup d’etat in Kiev they were very afraid of their future and that’s why they were unanimous in their will to unite with Russia. So they voted for just better life, this in not the subject of UNHR, but it is vital thing for the Crimeans. Russia only gave its hand of support in such revolutionary moment. I’m not going to justify it, but this is what has happened. Since there is no legal mechanism for separation under Ukraine Constitution, Crimea used referendum as the highest instrument of modern democracy.
I’m sure that in the future Crimea will be open and free territory of Europe but now Crimeans made their clear choice for Russia. There is no way back even if the USA are angry.
UN is not able to handle such sharp situations because it gives certain sovereignity for permanent members of SC. Tell me if the USA always behave in right manner or China? Not at all. China has serious human rights problems and Tibet case, but what UN can do with it? UK grabbed Folklands and what UN said? USA bombed Serbia – UN again was useless.
Unfortunately big Nations don’t have equal understanding of what is right or what is wrong, they look after their interests and adapt international law to various specidic situations. Universal approach – what we need, but unfortunately for the time being we lack it.

How do you spot a criminal? Well, they do wrong because they can. There is nothing wrong with the idea of equal rights and neither is the understanding lacking, as you say yourself, they are only looking out for their own interests. The way forward is to provide a better example. If you rule through oppression and through self serving means you are causing problems for yourself and humanity.
For a stable and prosperous world we need to unite and bury the conflict of interests.

“For a stable and prosperous world we need to unite and bury the conflict of interests.”

I fully agree with it! But how we can reach this goal? I doubt that today all states can forget about their interests and live in accordance with universal values laid down in UN Charted and different Human Rights instruments. Contempoprary world is far from perfect picture and that’s why we face that or another crisis.

This or that crisis is from lack of perspective. We need to stop wasting time and resources and start working together for the sake of all people and the environment. It’s just a choice to make and I for myself don’t find it difficult because it’s the right thing to do.

I fully agree with you but the world is not perfect that’s why we face that or another difficult situation. The states guard their egoistic interests and don’t want to cooperate with each other as we expect. Neverthless we must try our best to make the world more democratic and comfortable for ordinary people.

The world not being perfect is no excuse to guard ones egotistical interests. That’s exactly what is causing the problems and making them worse. The foundation for international cooperation is the UN and a rogue nation is definitely seen with their extracurricular activities.

As I pointed to the case of Austria (1938), Germany was afraid the vote wouldn’t go their way so they sent troops in beforehand, not something you can call guarding the democratic process or upholding international order.

Austria case 1938 is of different nature, it is absolutely wrong to compare it with Crimea 2014. Austria was alwayes independent state, even Empire, they never belonged to Germany in peace and love. Crimea since 1778 was part or Russia, since 1918 it had a status of autonomous Republic as a part of Russian Federation. Absolute majority of population there are Russians there (more than 75%). In 1954 former soviet communist leader Nikita Khrushev, commemorating 300th anniversary of unification Russia with Ukraine, made a “gift” to Ukraine having passed them territory of Crimea. That was done in breach of Soviet Constitution 1936 which prohibited transfer of any territory within Union from one Republic to another (USSR was formed of 16 sovereign Republics). So this political and personal decision from the very beginning was invalid. When USSR was alive that was not of such importance but when Ukraine separated the question of Crimea legal status arose again. Clearly Ukraine should have separated with its historic borders when it joined USSR in 1924 but they just occupied Crimea without any legal mechanism.

So to say the truth Crimeans wanted to restore historic justice and to re-unite with their Motherland. Why do you find it strange?
Frankly speaking it is difficult to imagine how they could live with new Government in Kiev. I remind you that the first law which new Ukrainian authorities adopted was a prohibition of Russian language (and other languages of minorities). So all Crimeans were deprived of their native language in terms of state policy. Clearly they didn’t see a future for themselves under new Ukraine authorities, international community was silent and they decided to determine their political destiny themselves. What’s wrong with it?

I think UN right now is not capable of solving such matters in constitutional manner because “separation” is an exception from common practice. For example yesterday Spanish Parliament voted against referendum in Catalunya on separation. But national forces in Catalunya insist on it. What to do? Apply to the UN? But UN definetely will be against separation if ever all countries can come to a common agreement. So Catalunya is left nothing else but to struggle for the referendum. As compared to Crimea Cataluns can’t rely on any state to help them that’s why it will be difficult for them to achieve their aim. When you have USA on your side (Kosovo) or Russia (Crimea) then you can act yourself with more chances. As you know Kosovo even didn’t hold referendum for desintegration from Serbia, they just used their armed forces. Crimea didn’t have their own troops so they requested Russia to help.
I think that on some level (perhaps UN or big 20) there should be elaborated a pattern for situations when separation is under question. Otherwise each time the world will have an additional conflict case.

So now you are suggesting separation as the only proper outcome when you in your last reply were pressing the case of improper treatment and repression of minorities by the Kiev government. If you stop being so quick to draw conclusions you may see that repression of minorities is something the UN will stand up against through protection of basic rights.

So instead of withdrawing (separation) you sit down and work it out together (unity with respect for differences). By honoring basic treaties the minorities and their interests are protected and the redrawing of any borders don’t even come into question.

To prevent the extreme cases of ethnic cleansing where disrespect of minorities is an indicator of the process in its infancy there need to be intervention and reprimands for those responsible for the security or the people in charge.

As the case may have been before, to redraw borders around ethnic groups, it only fosters more of an extreme nationalistic mindset instead of the tolerance and respect for differences that is needed. No country is a homogenous group and it is a vain idea to strive for such a thing.

It is inherent in human nature that there will be differences in a population, even within the same ethnic group, so it’s a silly idea really to start persecution on basis of differences. It’s a basic requirement of freedom to allow differences and a government based on dictatorial tendencies and repression should belong to the past in today’s educated world.

You develop theoretical approaches for the “separation” question. I agree with you, no doubt that you are right. Let’s blame central governments that they can’t handle condlict situation in right manner. But then explain me why Scotland or Catalunya want to separate? Shall we blame British and Spanish Governments for it? If it is so easy to find solutions there why they are still not found?
In Ukraine new Kiev authorities are very rude with minorities and that provoqued crisis. If international community (including UN) is silent about it then people go on streets and decide their destiny themselves.

I’m not familiar with every problem in every situation but I’m quite sure that if people and governments cared about human rights as much as they do for their nationalistic identity or stubbornness in government it would not take long to get it sorted.

If we all stand up for more concrete UN action based on foundational rights and respect for everyone involved I think that will help too.

Dapo Akande

Dapo Akande is one of the editors of EJIL:Talk!. He is Professor of Public International Law at the University of Oxford and Yamani Fellow of St Peter's College, Oxford. He is Co-Director of the Oxford Institute for Ethics, Law & Armed Conflict, and also of the Oxford Martin Programme on Human Rights for Future Generations. Dapo is a member of the Editorial Boards of the European Journal of International Law and the American Journal of International Law.